Monday, April 27, 2015

In Young v.UPS,
a 6 to 3 Supreme Court majority vacated a Fourth Circuit decision upholding a
District Court decision granting UPS summary judgment and supported a driver’s
pregnancy discrimination claims. The Court resolved a Circuit split regarding
employers’ duty to accommodate pregnancy-related limitations. Justice Breyer,
writing for the Court, explained that Young demonstrated a genuine issue of
material fact as to whether UPS’s facially neutral reasons for not
accommodating her were a pretext for pregnancy discrimination. Only Justices
Thomas, Scalia, and Kennedy dissented.

I.Young’s Story

Young worked as a part-time delivery driver for UPS.
She became pregnant in fall 2006, and her doctor told her that she should not
lift more than 20 pounds during the first 20 weeks of her pregnancy, or more
than 10 pounds thereafter. With this lifting restriction, UPS told her that she
could not work during her pregnancy because UPS required drivers to be able to
lift parcels weighing up to 70 pounds (and up to 150 pounds with assistance).
UPS also told her that she was not qualified for a temporary alternative work
assignment even though UPS promised to provide temporary alternative work
assignments to employees who were injured at work based on a collective
bargaining agreement. Young, as a result, stayed home and remained on a leave
of absence without pay during most of her pregnancy, and eventually lost her
employee medical coverage.

Young sued UPS, claiming that UPS discriminated against
her by failing to accommodate her during her pregnancy. UPS filed a motion for
summary judgement, arguing that there is no duty to accommodate pregnancy, and
that Young did not fit into any of the three categories of drivers UPS would
accommodate under its company policy: (1) those who injured at work; (2) those
who lost their Department of Transportation (DOT) certifications, and (3) those
who suffered from a disability covered by the Americans with Disabilities Act
of 1990 (ADA). In reply, Young proffered the following facts she believed she
could prove to support her claims. First, her co-workers were willing to help
her with heavy packages, but UPS denied this as an accommodation. Second, UPS
accommodated other drivers who suffered disabilities that created work
restrictions similar to hers. Third, a UPS shop steward who had worked for UPS
for roughly a decade testified in his deposition that “the only light duty
requested restrictions that became an issue” at UPS “were with women who were
pregnant.”

II.Holdings of the District Court and the
Fourth Circuit

The District Court granted UPS’ motion for summary
judgment. It reached two conclusions. First, Young could not show intentional
discrimination through direct evidence merely based on the fact that UPS denied
her accommodation requests and approved of accommodating others. Second, Young
could not make out a prima facie case
of pregnancy discrimination under McDonnell
Douglas because those drivers who were accommodated by UPS (on-the job
injuries, DOT or ADA categories) and Young were too different to be deemed
similarly situated. In short, the District Court treated UPS’ reliance on its three-category
facially neutral policy as a legitimate, nondiscriminatory reason for refusing
to accommodate Young. The District Court found that Young created no genuine
issue of material fact as to whether UPS’s reason was pretextual. The Fourth
Circuit affirmed the District Court’s findings.

III.The U.S. Supreme Court

A. Disputes
over Interpretations of the Second Clause of the Pregnancy Discrimination Act
(PDA) under Title VII

Young filed a petition for certiorari asking the
U.S. Supreme Court to review the Fourth Circuit’s interpretation of the PDA
under Title VII, and the Supreme Court granted her petition. The focus of the
dispute was the PDA’s second clause: “Women affected by pregnancy, childbirth,
or related medical conditions shall be treated the same for all
employment-related purposes . . . as other
persons not so affected but similar
in their ability or inability to work.” Young contended that a court, under
the second clause of the PDA, should find a Title VII violation whenever a
pregnant worker is not accommodated as other workers who have similar inability to work. UPS, in
contrast, maintained that the second clause merely incorporated pregnancy
discrimination into the ban on sex discrimination, and held that courts should
compare accommodations a pregnant worker receives with those received by other
workers within a facially neutral policy.

Justice Breyer, in the majority opinion, while
denying pregnant women have an unconditional “most-favored-nation” status under
the PDA and while refusing to give special weight to the EEOC’s 2014
guidelines supporting Young’s interpretation, held that UPS’s interpretation
failed to carry out Congress’ objectives in the PDA. First, UPS’s interpretation
would render the second clause of the PDA superfluous because the first clause
of the PDA already defined pregnancy discrimination as a kind of sex
discrimination. Second, accepting UPS’s interpretation (followed by the dissent)
would revive the Court’s decision under General
Electric Co. v. Gilbert, 429 U.S. 125 (1976) -- one that the Congress
passed the PDA to overturn. The employer’s plan in Gilbert was similar to the UPS’s facially neutral accommodation
policy. The Gilbert employer plan “provided
non-occupational sickness and accident benefits to all employees without
providing disability benefit payments for any absence due to pregnancy,” and
thus did not violate Title VII, because pregnancy was neither a disease nor
necessarily a result of accident. Justice Breyer, invoking California Fed. Sav. & Loan Assn. v. Guerra, 479 U.S. 272
(1979), emphasized that the first clause of the PDA reflected the Congress’
disapproval of the reasoning in Gilbert by expressly
adding pregnancy to the definition of Title VII’s sex discrimination, while the
second clause was intended to overrule the holding of Gilbert and to illustrate how pregnancy discrimination could be
remedied.

B.Applying
the McDonnell Douglas Framework Under
the Second Clause of the PDA to Young’s Case

Justice Breyer clarified the McDonnell Douglas framework under which pregnant workers, when
being denied an accommodation under the PDA’s second clause, could show
disparate treatment through indirect evidence. To make out a prima facie case, the pregnant worker
must show: (1) that she belongs to the protected class (pregnancy); (2) that she
sought accommodation; (3) that the employer did not accommodate her, and (4) that
the employer did accommodate others “similar in their ability or inability to
work.” Then, the burden of proof shifts
to the employer and the employer could justify its refusal to accommodate her by
showing “legitimate, non-discriminatory” reasons. To rebut the employer’s
justifications, the pregnant worker may in turn show that the employer’s
proffered reasons are in fact pretextual through two steps. First, the pregnant
worker can provide sufficient evidence showing that the employer’s policies
impose a significant burden on pregnant workers. Second, the pregnant worker
can further demonstrate that the employer’s “legitimate, nondiscriminatory”
reasons are not sufficiently strong to justify the burden. After the pregnant
worker meets the above evidentiary standards, an inference of intentional
discrimination may arise. For example, when the pregnant worker provides evidence
demonstrating that the employer accommodated a large percentage of non-pregnant
workers while failing to accommodate a large percentage of pregnant workers, this creates a genuine issue of material fact as to whether a significant burden is imposed
upon pregnant workers.

Applying the clarified framework and viewing the
record in the light most favorable to Young, Justice Breyer held that Young
created a genuine dispute as to whether UPS provided more favorable treatment
to at least some employees whose situation cannot reasonably be distinguished
from hers. Also, the Fourth Circuit failed to consider whether UPS’s
three-category policy significantly burdened pregnant women and whether UPS’s
justifications were strong enough to justify such a burden. The lower courts,
on remand, will need to determine whether Young created a genuine issue of
material fact regarding whether UPS’s reasons were pretextual.

Justice Alito concurred with the majority and held
that UPS’ justifications for differentiating drivers in the three categories of
accommodated workers were not clear enough to justify their decision to treat
pregnant drivers less favorably.

If you believe that your employer imposed an
unjustifiable burden upon you during your pregnancy, please contact BryanSchwartz Law.

Wednesday, April 1, 2015

In
the context of employment discrimination litigation, one of the most
challenging tasks for both the aggrieved employee and his or her attorneys is
to find evidence beyond the employee’s own statements. For example, when you
informed your supervisor of your disabled status over the phone, and your
supervisor verbally declined your accommodation requests, how can you prove
this conversation happened? Your supervisor may deny the conversation took
place.

The
Ninth Circuit Court of Appeals recently announced good news for workers who
must rely upon their own testimony to survive an employer’s motion for summary
judgment. In Nigro v. Sears, Roebuck and Co., 778 F.3d 1096 (9th Cir.
2015), the Ninth Circuit reversed the district court’s summary judgement in favor of
Sears on the plaintiff’s claims under California’s Fair Employment and Housing
Act (FEHA). The Court held that the District Court erred in disregarding the
plaintiff’s declaration and deposition testimony because it was “self-serving.”
As the Ninth Circuit explained, “declarations are often self-serving, and this
is properly so because the party submitting it would use the declaration to
support his or her position.” Id. at 1098. Ultimately, the fact “that
evidence is to a degree self-serving is not a basis for the district court to
disregard the evidence at the summary judgment stage.” Id. In Nigro, the
plaintiff’s testimony – plus a statement of a witness that the supervisor had
admitted “I’m done with that guy” about the plaintiff – were sufficient to
overcome summary judgment on Nigro’s disability-based wrongful termination
claim.

The
Ninth Circuit reiterated in Nigro the important holding that it should
not take much for employees in a discrimination case to overcome a summary
judgment motion.

The
Ninth Circuit also reversed summary judgment on Nigro’s FEHA claims based upon
denied disability accommodation and failure to engage in the interactive
process. The District Court concluded that there were no genuine issues of
material fact because Nigro “continued to be accommodated…despite ‘any actual
or perceived irritation’” by the boss. Id. at 1099. But the Ninth
Circuit found, based upon the plaintiff’s testimony, that the supervisor’s boss
“chilled” Nigro’s right to use an accommodation and stifled the interactive
dialogue, and as such, that summary judgment should have been denied on both
counts. Id. Nigro’s testimony that he spoke to the supervisor’s boss
about accommodations in a single phone conversation was enough to obligate
Sears to participate in the interactive process.

If you have concerns over the way your employer
is responding to reasonable accommodation requests, please contact BryanSchwartz Law.